Criminal prosecution; Sua sponte dismissal; Separation of powers; Genesee Prosecutor v Genesee Circuit Judge; Prosecutorial discretion; People v Morrow; Inactive Michigan Commission on Law Enforcement Standards (MCOLES) license; MCL 28.609(14); Witness competency; MRE 601; Nolle prosequi; MCL 767.29

The court held that the trial court abused its discretion and violated separation-of-powers principles by sua sponte dismissing the felony prosecution without prejudice because the key police witness had an inactive MCOLES license. Defendant was charged with CCW, possessing a device designed to convert a semiautomatic firearm into a fully automatic firearm, and felony-firearm after Officer F saw defendant make a throwing motion, heard a metallic object hit the ground, and recovered a handgun with a conversion device. F was the only testifying witness at the preliminary exam. On the scheduled trial date, the prosecution disclosed that F’s MCOLES license was inactive when he investigated the case. The trial court dismissed the prosecution after concluding that “the officer had no authority to act as a police officer.” On appeal, the court held that the dismissal improperly intruded on the prosecutor’s charging authority because “‘the prosecutor, an official of the executive branch, alone makes the decision to bring a criminal charge,’” and a court may not control the “‘institution and conduct of prosecutions’” absent lawful authority. The court emphasized that no statute authorized sua sponte dismissal as a remedy for an inactive MCOLES license, and the trial court had made “no determination” that the evidence was insufficient for conviction or that the prosecutor’s decisions or actions were unconstitutional, illegal, or ultra vires. The court also held that F (who did not arrest defendant) was not incompetent to testify merely because his license was inactive because MRE 601 makes “[e]very person” competent unless limited capacity or another rule provides otherwise. Although MCL 28.609(14) barred him from exercising law-enforcement authority with an inactive license, it did not preclude testimony about relevant observations. Reversed and remanded to allow reinstatement of the charges at the prosecution’s discretion.